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Kluin v. American Suzuki Motor Corporation11/1/2002
625 (Cal. 2001).
Kluin also relies on Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 675 N.E.2d 584 (1996), to support his contention that misrepresentations in promotional literature may provide a basis for a consumer protection claim. In Connick, purchasers of Suzuki Samurai sport utility vehicles, and residents of Illinois , Pennsylvania, and New Jersey, filed a variety of claims in Illinois after a consumer watchdog organization gave the Samurai a "not acceptable" rating. 174 Ill. 2d at 488. As the district judge observed, Connick is not a jurisdiction case and, thus, is not helpful to the discussion here.
In contrast to Connick, DeSantis v. Hafner Creations, Inc., 949 F. Supp. 419 (E.D. Va. 1996), a patent infringement suit, declined to find personal jurisdiction by commission of a tortious act under the Virginia long arm statute where an alleged patent infringer advertised a product in a nationally distributed publication. The product, a "quick draw" waist pack designed to hold a handgun, was advertised in "Shotgun News," a nationally circulated publication with about 3,300 individual subscribers in Virginia. The advertisement occurred on two or three occasions from September 1995 through October 1995 and did not amount to "regular solicitation" of business in Virginia under the long arm statute. 949 F. Supp. at 425.
Kluin's case is distinguishable from Connick and DeSantis. The KCPA requires that the defendant engage in a "consumer transaction" in Kansas. Here, Kluin fails to point to any evidence of a consumer transaction between Suzuki and Kluin in this state. Kluin purchased the motorcycle from Bartlesville Cycle Sports in Oklahoma and had warranty service in Oklahoma.
The KCPA does not apply.
K.S.A. 60-308(b)(5)
Kluin also asserts that personal jurisdiction was acquired under K.S.A. 60-308(b)(5), which provides for jurisdiction based upon "entering into an express or implied contract . . . with a resident of this state to be performed in whole or in part by either party in this state."
In his response to Suzuki's motion to dismiss, Kluin argued that Suzuki issued an express warranty to him. The district court found that this was apparently Kluin's basis for his assertion that 60-308(b)(5) applied. The district court noted that there was no evidence that the warranty was "performed" in Kansas. In his brief, Kluin merely argues that such a warranty "may be performed" in Kansas. He reasons that when a Kansas resident purchases a new Suzuki cycle from an authorized Suzuki dealer, where the dealer is located makes no difference. He cites no authority to support his argument. The warranty was issued in Oklahoma and all warranty service was performed in Oklahoma. The warranty Kluin relies on is not in the record. We have no warranty language to review. Based on the record before us, Kluin fails to show that the warranty was entered into in Kansas or performed in whole or in part in Kansas. Thus, there was no basis for personal jurisdiction under K.S.A. 60-308(b)(5).
The "contacts" here (accessing the web site, reading advertisements and articles, and the phone calls to the cycle shop in Oklahoma) were unilateral contacts initiated by Kluin, not contacts from Suzuki. Also, the only conversation alleged by Kluin was initiated by him and directed toward someone at the dealership in Oklahoma. Minimum contacts for exercising personal jurisdiction cannot be established by the unilateral activity of the plaintiff. See OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1092 (10th Cir. 1998).
Venue
The district court found that Suzuki's motion to dismiss for lack of proper venue
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